People v. Sofranko CA2/6

Filed 1/27/16 P. v. Sofranko CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B263047 (Super. Ct. No. 1430074) Plaintiff and Respondent, (Santa Barbara County)

v.

DONALD ROBERT SOFRANKO, JR.,

Defendant and Appellant.

Donald Robert Sofranko, Jr., appeals from a postjudgment order requiring him to pay $219,568.12, i.e., the amount of attorney fees and costs, as restitution. The beneficiary of the restitution is James Nigro, the victim of appellant's felony assault. Appellant contends that the trial court erroneously required him to pay restitution for these fees and costs incurred by Nigro in bringing a civil action for damages resulting from the assault. Appellant argues that, in an agreement settling the civil action, Nigro waived his right to attorney fees and costs, that the trial court erroneously failed to divide attorney fees between those incurred to collect economic damages and those incurred to collect noneconomic damages, and that Nigro was entitled to restitution only for those fees incurred to collect economic damages. We reject each of these claims and affirm the restitution order.

Factual and Procedural Background In March 2014 appellant pleaded no contest to an assault upon Nigro by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The trial court sentenced appellant to prison for three years, suspended execution of the sentence, and placed him on probation for three years on condition that he serve 180 days in county jail and pay restitution of $293,215.96 to Nigro. The court reserved jurisdiction to award additional restitution if warranted. In September 2013 Nigro filed a civil action for damages arising from injuries and losses he had sustained as a result of appellant's assault. In July 2014, after the court in the criminal action had made its restitution order, Nigro made a $500,000 offer to compromise in the civil action. The offer was pursuant to Code of Civil Procedure section 998 (section 998). The offer stated: "Please be advised that this offer is inclusive of any and all attorney's fees and costs that may have been incurred. To avoid any confusion, this is a policy limit demand for the entire insurance policy limits available to [appellant] . . . ." The offer included an acceptance provision to be signed by appellant. This provision stated that "each side" would "bear his own attorney's fees and costs." Appellant's counsel signed the acceptance, and a $500,000 judgment was entered in Nigro's favor. Appellant's insurance company paid the judgment. In November 2014 Nigro's counsel acknowledged that the judgment had been satisfied. In the criminal action, appellant filed a request that the settlement proceeds be offset against his restitution obligation of $293,215.96. In support of his request, appellant cited People v. Bernal (2002) 101 Cal.App.4th 155, which held: "[S]ettlement payments made to [the victim] by [defendant's] insurance carrier must be an offset to [defendant's] restitution obligation to the extent that those payments are for items of loss included in the restitution order." (Id., at p. 168.) Trial Court's Decision The trial court rendered a comprehensive, detailed and thorough17-page decision. It noted that "Nigro paid [his counsel] a 40% contingency fee ($200,000), and litigation costs of $19,568.36, all of which were deducted from the settlement amount [of